Agenda for 36th Class
• Admin
– Handouts
– Review class – Tuesday 5/13 10-11:15
• I will stay in the room until at least noon to answer questions
– Last / next 4 classes are canceled: M 4/21, W 4/23, F 4/25, M 4/28
• Review class is next (and last) class
– Office hours
• M. April 21, 10-noon
• F. April 25. 10-noon
• M. April 28 10-noon
• W April 30. 10-noon
• T May 13. 11:15-2PM
• Other times by appointment
• Exam
• Review of forum non conveniens and collateral estoppel
• Collateral estoppel
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Assignment for Review Class
• 2011 Civ Pro Exam essay questions (handout)
• Any questions you want to ask
2
Exam
• In class
– Thursday 5/15, 9-12 (won’t need 3 hours)
– Multiple choice
– Can use calculator
– Open book
• Take home
– Essay or essays
– Any continuous 8-hour period during exam period
– Probably advisable to take sometime Wednesday, 5/14
– Open book, calculator
• Concerns about take-exam
– If you need a quiet place to take take-home exam, please let me know
• I will try to arrange a quite place for you to work
– If you are concerned about cheating
• Remember that cheating will be severely punished
• Remember that law school has lots of experience with situations of
potential cheating
– Upper level take-home exams, writing assignments, etc.
– Cheating is very rare
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Exam Studying Advice
• Study for exam as though it were an in-class, timed exam
– Don’t assume you can learn material during exam
• Outlining
– Do your own
– Benefit is making outline, not having one
– Compare outline to others’ outlines, after you are done
– Create one page mini-outline / list of topics & issues
• Do practice problems
– Glannon
• Don’t’ look at answers until you have tried to figure it out yourself
– Blackboard questions (if haven’t already done)
• Do old exams
– Write out full answers BEFORE looking at model or discussing with others
– Don’t worry about time
– Compare your answer to others’ answers
– Compare your answer to model answer
• Be very critical – sentence by sentence
• Make sure you understand what you missed
• Even best exam misses 50%
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Exam Advice
• Read question carefully
• Outline answer before starting to write, so well structured
• Pay attention to genre
– Memo to partner different is different from appellate opinion
– Compare 1995 Question 2 model answer to 2013 model answer
• Include one or two-paragraph executive summary at the beginning
– Summarize key conclusions and reasons for those conclusions
– NOT just road map
• Use headings to separate issues
• Consider putting most important issues first
• Make sure you justify your conclusions with reference to facts in the question
• Take a break after completing your first draft
• Go over one page outline/list of topics & issues to make sure you didn’t miss issues
• Re-read the question and go over one-page outline again
• Proofread and revise
• Take a break
• Reread question again, go over one-page outline again, revise again, proofread5
Study Tools
• Glannon
• MyLaw Portal
– “Exams on the Web”
• Exams and 1995-2002
– “Secure Documents”
• Model answers to writing assignments / questions discussed in class
• Exams, memos, and model answers to 2012 and 2013 exams
• Memo and model answer to 2011 exam will be posted after review class
– “Recorded Classes”
• Recordings of all classes
• www.klerman.com, “Civil Procedure” button
– Slides for all classes
– Handouts
• Particularly useful exams
– Recent exams: 2011, 2012, and 2013
– Multiple choice: 2000 & 2013
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Review of Last Class
• Forum Non Conveniens
– If case would be more conveniently litigated in different legal system
• Transfer not possible
• Forum non conveniens dismissal
– Change in law or procedure is not usually grounds to retain case where
witnesses and evidence are elsewhere
• Res Judicata
– Claim preclusion
– Cannot relitigate same claim
– Cannot relitigate related claim
• Federal rule: Cannot relitigate claim that arises out of same transaction or
occurence
• State rules (e.g. Illinois) may be narrower
– Apply res judicata rule of court which rendered first judgment
• Case 1. Illinois state court
• Case 2. Federal court
• If res judicata issues arises in Case 2, apply Illinois state court rules on res
judicata
– Raise res judicata in answer as affirmative defense
– Usually resolved on summary judgment
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Collateral Estoppel Requirements
• 1. Same issue
• 2. Actually litigated. No C.E. if party admitted issue in first suit
• 3. Actually decided. No C.E. if court resolved case without deciding issue
– Can be hard to tell if jury verdict
• 4. Necessarily decided / Essential to judgment
– If changing result on issue would not change outcome of case, then no C.E.
– If court decides negligence case by finding duty, but no negligence
• No C.E. on duty
• CE would not be fair to defendant, because could not have appealed finding
of duty
– If court decides contract case by deciding that there was no contract and that,
even if there was a contract, there was no breach
• Some courts follow Restatement 2nd
– C.E. applies neither to “no contract” nor to “no breach”
» Court may not have thought carefully about
» Plaintiff may have thought appeal futile
– Unless issue squarely decided on appeal
• Other courts follow 1st Restatement and apply C.E. to both
• Like res judicata, apply collateral estoppel rules of court which rendered first
judgment
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Collateral Estoppel Questions
• Illinois Central v Parks
– Train collision
– Suit 1. Jessie v. IL Central
• Bertha ‘s claim. Compensation for injuries
– Judgment. 30K
• Jessie’s Claim. Loss of services and consortium
– Judgment for defendant
– Suit 2. Jessie v. IL Central for Jessie’s injuries
• No c.e. on contributory negligence, because J for defendants could have
been based on two findings
– No damages in loss of consortium claim
– Contributory negligence by Jessie
• So neither essential, so c.e. on neither
• So Jessie can relitigate whether he was contributorily negligent
• Yeazell p. 753 Q 2
• Ruhrgas.
– Fed Court dismissed, citing lack of subject matter J OR lack of personal J
– Plaintiff refiled in state court
• Yeazell p. 756 Qs 3-4
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Nonmutual Collateral Estoppel I
• Traditionally, collateral estoppel applied only when parties were the same in first
and second suit (like res judicata)
• Some court allow person not a party to the first suit to assert collateral estoppel, as
long as person against whom c.e. asserted was in the first suit (and 4 other
requirements satisfied)
– Called nonmutual collateral estoppel
• 2 kinds of nonmutual collateral estoppel
– Defensive
– Offensive
• Defensive nonmutual collateral estoppel
– Plaintiff sues defendant1 for patent infringement
– Court decides that patent is invalid
– Plaintiff sues defendant2 for patent infringement
– Defendant2 can assert collateral estoppel against plaintiff
• Because plaintiff already litigated and lost on issue of patent validity
– Now accepted in nearly all jurisdictions
– “defensive” means asserted by defendant
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Nonmutual Collateral Estoppel II
• Offensive nonmutual collateral estoppel
– Plaintiff1 sues defendant for poisoning water
– Court decides that defendant poisoned the water
– Plaintiff2 sues defendant for poisoning the water
– Defendant may be estopped from arguing that did not poison the water
– Very controversial
• If defendant loses one case (1st or 2nd or 99th case), would mean that
defendant loses all subsequent related cases
– But if one plaintiff loses case, then later plaintiffs not bound by c.e
• Discourages joinder
• Defendant may not have had incentive to litigate hard in first case
– Federal courts have discretion to apply c.e. offensively.
– Factors from Parklane
• Has there been inconsistent litigation outcomes?
• Did plaintiff strategically wait (not join) so as to take advantage of offensive
non-mutual collateral estoppel
• Did defendant have sufficient incentive to litigate issue aggressively in first
case
– “Offensive” means by plaintiff
• Yeazell pp. 764ff Qs 1c, 2a&b, 5a&b
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